Representative democracy seems to have reached its tipping point in countries that have long been lauded for their democratic models. The Congress is dead-locked in the US, as political ideologies reach a bipartisanship that is seemingly irreconcilable. When even the so-called ‘super’ committee comprised of only 12 individuals can’t seem to agree, the Senate’s failure to pass legislation on anything from climate change to rising the debt-ceiling doesn’t seem to be too outrageous in comparison. The only thing that seems to unite Congress is worrying about China’s growing power and currency manipulation.

The EU, on the other hand, has almost stopped trying to sell the idea of democracy to its voters, as five of its governments have been felled over the current debt crisis. Brussels has openly installed technocrats in Italy and Greece that have been received fairly warmly by the public, who seem to think that any form of decision-making is better than the political dithering seen over the past few years. Further treaty changes will force countries to compromise their sovereignty and agree to budgetary control and supervision by external independent bodies.

In the East, the winter session of the Indian Parliament has literally grinded to a stand-still as both the opposition and members of Singh’s (ironically a technocrat himself in the world’s largest democracy) own party cause an uproar over Singh’s weak attempt to open up the Indian retail sector to FDI. India is seized by political stalemate even as mass protests against corruption rock the country as shocking government scams come to light. The strong opposition to the usual farce of Russian elections has taken Kremlin by surprise. Pro-democracy protests in Moscow have led to the first real political crisis Putin has had to face. If the next election is open to real competition, he may be the first Russian President to ever have to take part in a televised debate.

The world continues to deal with the fall-out of two unprecedented crises in 2008 and 2011 as the repercussions continue to ripple through the global economy.  On the other hand, international climate change talks continue to be a massive disappointment as the Kyoto protocol is in danger of dying without any legally binding agreements in place. As an impending global recession beckons, unemployment numbers rise ever higher even as anger at increasing inequality reaches climax. Mass uprisings extending from the U.S. to the Middle East have sprung up in the past year as the public fights for parity and more transparent governance at a pivotal time. How longer do we have before these global movements turn violent?

China seems to be the linchpin of the global economy, as it continues to invest heavily in infrastructure and clean energy and grow at a phenomenal rate It is one of the few places in the world where the government seems to actually be able to take decisions- in an undemocratic way, of course. No matter how much the West moans worries about its rapid progress and impending threat, it is the one bright spot in the market. This unexpected economic success of undemocratic policy-making calls our own models of governance into question.

However, it isn’t that democracy has failed; it is simply that it has de-evolved; our systems of governance have grown bloated, corrupt and decidedly undemocratic. Crony capitalism and the revolving door between the banks and government have never been highlighted so boldly as by the 2008 crisis and the OWS protests. If we are forced to pay for others mistakes, and accept losses for risks we didn’t take as others reap the returns, can we claim to follow a democratic model of governance?

The OWS movement has been heavily criticized for failing to politicize in a more traditional form, but it has the right idea. We cannot change the heavily inefficient political system from within; there are too many well set-up barriers to entry that include resources and time.  But we don’t need to work within the system. Whether the politicians like it or not, the internet is a democratizing force. Social networking and media has revolutionized the way we function, and the realm of possibilities of our actions. People are easier to connect; protests and actions are easier to organize. For instance, in Russia, the government has traditionally relied on state-controlled TV to set the political agenda; but independent news sources have penetrated Russia through the internet and encouraged political awareness. A video of a youth slapping one of India’s most famously corrupt Ministers went viral in a day with thousands of Indians lauding his actions on Facebook and Twitter. The Egyptian government made the mistake of attempting to cut off the internet when the rising against Mubarak first erupted- where is Mubarak now? For an example closer to home, look no further than this site- it would have impossible for our generation to voice our political opinions and be taken seriously just ten years ago.

We’re in the midst of a dramatic revolution, as the world grows flatter. The 1% is powerful because we choose them to be. It is time we recognized the clout of the 99%. The Move Your Money project is a great illustration of this as it encourages the public to shift their funds from Wall Street’s major banks to local ones, taking the power away from the bankers. Additionally, an increasing number of people are organizing to take urgent climate change action into their own hands, as politicians continue to drag their feet. As funding from banks dries up, renewable energy companies have begun to raise money through groupfunding using social networks.

The two crises have highlighted that our economic and political systems are broken; we must adapt to survive. We can and are creating new models of governance.

Though the detailed facts are yet to emerge, a few of them are fairly clear: There were 160 patients in the hospital; more than 70 people died, many of them patients, their death was due to a fire at around 3 a.m., caused, in some manner by chemicals illegally stored in the basement, the fire engines were slow to respond, either owing to their own deficiencies or because they were called late and from early visuals, the equipment the firemen seemed to be using were unsophisticated and primitive.  Essentially, more than 70 people died because of a fire that should never have been allowed to happen in the first place.

In the post-mortems to this horrific incident, the obvious questions must be asked: Did the building have an Evacuation Plan in place in the event of a fire? On what basis did the Fire Safety Department issue a clearance to the building? Why was the storage of chemicals in the basement in an illegal manner not detected earlier? Did the hospital staff have adequate training to deal with the outbreak of a fire? Why did it need 70 people to die for the hospital and the relevant regulatory authorities to acknowledge that they were in gross violation of the law?

I have little doubt that now several harsh consequences will follow: the hospital’s license will be revoked, its owners and managing directors jailed and a massive penalty imposed. To the families of the dead and injured, a handsome ex gratia amount will be declared by the government, a solemn promise made that incidents of this nature will not be allowed to happen again, the relevant licensing authority will henceforth be extra vigilant in issuing occupancy certificates and the Fire Safety department will be upgraded with the latest “world-class” equipment so that they can arrive at the scene and control the fire rapidly.

But this is not enough. And the reason this is not enough is neither because the damage has already been done, nor because these measures in themselves have little deterrent effect, but rather because these actions do not strike at the root of the problem and never can. And the root of the problem is this: WE, AS CITIZENS, DO NOT HAVE ANY RESPECT FOR THE LIVES OF OTHERS. It is this lack of respect that is responsible for AMRI not implementing fire safety regulations, well knowing that if a fire broke out in a hospital, it would lead to massive deaths. It is this lack of respect, along with, I am sure, a large degree of corruption, that means that a license was issued by the government despite fire safety measures being woefully inadequate, blithely oblivious to the fatal consequences that may ensue as a result of their actions. It is this lack of respect which is responsible for the fire department never being prepared to do their job, whenever a major fire breaks out, counting on the myopic nature of public memory. And it is this lack of respect which means that once again, in about two weeks’ time, we will forget about this incident and whether anything was done or not as a follow-up, and go back to our petty lives, thankful to God that we or anyone we knew was not affected by this incident.

So the next time you disrespect your fellow citizens by parking in front of a No-Parking sign, think: 70 people may die as a result of my action; the next time you try to jump a queue because you are in a real hurry, think: 70 people may die as a result of my action; the next time you pay a bribe, think: 70 people may die as a result of my action; the next time you forget about an incident of this nature, think: 70 more people may die as a result of my forgetting. And realise that when you do these things, though you may think you are getting your work done faster, in effect all you are doing is completely wrecking the system of governance in India.

The AMRI Hospital fire this morning was not an accident. It was mass murder. Murders for which the AMRI authorities will undoubtedly be punished severely. And perhaps even the relevant municipal authorities as well. But in reality, it will be murders for which we, as ordinary citizens of India, are ultimately responsible. It is our callousness, our willingness to break the rule of law when it suits us, our indifference to others’ breaking the rule of law, our self-centric notion of the country and its governance systems, our sheer disrespect for others, their rights and their needs which allows this sort of incident to happen time and time and time again. If this is mass murder, the AMRI Hospital authorities are unfortunate abettors. We are the prime culprits.

When one returns from a long break from work, one is tempted to take it easy, switch gears slowly, and settle into a rhythm in due course.

Except if you’re a judge of the Supreme Court.

In which case, you charge right back into the front pages of every newspaper with hard hitting judgments and wide ranging orders.

To recapitulate, just this week:

Special Investigation Team set up to probe black money stashed abroad

Chattisgarh Government directed to disband the Special Police Officers (better known as the Salwa Judum)

Allahabad High Court’s quashing of Land Acquisition by Greater Noida Industrial Development Authority upheld

Monitoring of Investigation into Cash for Votes Scam

Whew. This is what an activist Court looks like folks. The Court is telling the Government how to do its job, whether it is in “getting” black money back, or how to fight the Naxalite/Maoist problem, or how it should acquire land for “public purposes” under the Land Acquisition Act.

It is of course a different matter whether or not this is a good thing.

The issue of judicial activism has been done to death here and elsewhere and the arguments, after a point of time, are just the same old re-treads – competence v enforceability of rights; institutional integrity v immediate need; so on and so forth.

The situation that the Supreme Court, and India, in general, finds itself in, however, cannot be easily bracketed within any of the existing parameters of the debate. Rather, what is propelling the Supreme Court’s activist drive (and to a great extent, other High Courts such as the Karnataka High Court and the Delhi High Court, as well) is the impression of a severe case of governmental paralysis that has gripped our polity.

There is no dispute that severe problems currently buffet the Indian State from all sides and in all sorts of ways, but there seems to be no will on the part of the political executive at the Centre to take any action to steady the ship.

Whether it is corruption, black money, Telangana, unjust land acquisition, depletion of forest cover, you-name-it-we-face-it, the Government’s reaction seems to be to run around in circles like headless chicken. In some cases, they know what to do, but won’t do it for lack of political will. In others, they know what to do, but go ahead doing the exact opposite for short term political/economic gains. In others, they have not the first clue on what to do.

So far, the Supreme Court has stepped in to remedy the situation in two of the three types of cases I just pointed out. The black money case is a classic instance of where the Government just does not have the political will to seriously pursue the persons fronting for the illegally obtained wealth stashed abroad. As Justice Reddy’s reasoned order makes it clear, far more effort was spent in convincing the Court that nothing could be done or something was being done, than actually going out and doing this things to prosecute individuals with suspicious foreign bank accounts. It is no wonder that Justice Reddy, among the more soft spoken and temperate judges of the Supreme Court, should have completely lost his rag during some of the black money case hearings.

With land acquisition, we have the Court finally stepping in to call the Government’s bluff about “public purpose”. This was a particularly egregious case where the Greater Noida Industrial Development Authority invoked the “emergency” clause of the Land Acquisition Act to deny farmers a hearing before acquiring land to be handed over to private developers to build luxury apartments. This is not a first for the UP Government mind you, but one could say that this is so obviously and blatantly stealing from the poor to give to the rich that the Court had to put its foot down. It is ironic, but exactly the same fears were voiced by Justice VD Tulzapurkar in his minority judgment as far back as 1985 in Bhimsinghji v Union of India (in the context of the Land Ceiling legislation).

The enactments involving large schemes of social engineering like abolition of Zamindars, agrarian reforms nationalisation of undertakings and businesses and the like, where avowedly the benefit of the community or public at large is the sole consideration are distinguishable from the instant case, where “industry” has been expressly defined to include business, trade or profession in private sector and where power has been coffered upon the State Government to allot properties acquired under the enactment to individual businessman, trader or professional to enable him to carry on his private business, trade or profession, that is to say, where the legislation is a fraud on State’s power of eminent domain, such a provision of putting a maximum limit on compensation payable in respect of the acquired property irrespective of its extent will have to be regarded as confiscatory in nature.

Then, the majority — comprising CJ YVChandrachud, and Justices MN Bhagwati, V Krishna Iyer, and AP Sen — brushed aside such fears as being everything short of hallucinatory, but now, in retrospect, the views of India’s finest judges of all time seem, frankly, deluded.

The current wave of activism among the judges is at least a year old and can probably be traced to the time when Justice Kapadia took over as the Chief Justice of India fifteen months back. His now-tainted predecessor monopolized fresh PILs that challenged Government power or inaction and let them languish in the doldrums of delay. In his last year as the CJI, it was an open secret that this was being done to get a favourable post-judicial posting — to pick a body at random, the National Human Rights Commission — along with the perks and power that go along with it.

Justice Kapadia, is however, cut from different cloth and has brought a strict, no-nonsense approach to the business of manning the sentinel on the quie vie. PILs were spread among the various Benches that he constituted, ensuring that such matters go before judges who have an impeccable record of honesty. So far, he hasn’t been let down as the Supreme Court’s monitoring of various issues, be it the implementation of the NREGA, the right to food and shelter, corruption in high places or the rights of tribals has attracted much appreciation and very little opprobrium.

Ideally, the site for the resolution of such complex and intractable problems should be the halls of Parliament or the domain of the Executive. Ideally, the manner in which such problems should involve careful deliberation, balancing as many interests as possible, and without compromising the interests of the worst off. Ideally, the results of governmental action should inspire confidence in the public at large that their democratically elected government is capable of solving the intractable problems of the day. Yet, as we see everyday, the situation is not even close to being far from ideal.

Contrary to academic and popular belief, judges are aware of their limitations and their lack of power. Overreach makes the judges and judiciary look silly, and sixty odd years of judicial history has ingrained this much at least into judges. Writ courts can only monitor, but not investigate. They can only call for reports, but cannot compel compliance. They can strike down egregious actions of State, but cannot fully restore those irretrievably wounded by such actions to full health, in body or mind. Much of what is said by judges during argument, by way of observation, — and often (mis-reported) by the media — is a tacit admission of this powerful powerlessness. Oxymoronic perhaps, but that is the only way to describe a judicial body that has the power to lay down the law of the land, protect fundamental rights against governmental encroachment and do complete justice, but cannot always ensure that its orders are not casually disobeyed by lower level officials.

Let’s be very clear about this. India’s democracy is by no means safe, secure or stable. It is being constantly subverted and undermined in a hundred different ways every day. Yet, every day, someone fights back against this subversion and undermining knowing that failure would bring the institutions of democracy down to dust. Democracy is not just a formal commitment to periodic elections based on universal suffrage, but something bigger and more meaningful, and most importantly, something worth defending.

The battles that the present activist Supreme Court has picked up go to the very heart of such a rich conception of democracy;
How should a democratic state fight to protect democracy without subverting it? What’s is the role of the State in ensuring that economic growth is equitably distributed? How to ensure that the political process is not subverted by illegally accumulated wealth?

As Justice Reddy puts it so eloquently, these are fundamental, existential questions that have to be grappled with and cannot be wished away or put into a SEP-field. Among the major organs of the State, only the judiciary seems to understand that this is what is at stake, and why it has do something to prevent utter and complete breakdown of the institutions of democratic governance.

Maybe, if things improve, we won’t need a Supreme Court that has to keep an eagle eye on governing institutions. Maybe, it will go back to resolving intractable family disputes and gigantic corporate battles and when certain families are involved, do both at the same time. Maybe, the case load of the judges will leave them worrying less about what public interest compels them to do, and more about what the precedents and principles have to say about it.

Maybe.

For now, though, the sentinel’s strong, stentorian “qui vive” is comforting.

In many ways, we both share the dubious distinction of being ‘Almost Writers’; writers that were, would have been, could be, should be, can be, please be, and the many other bees that hummed around us, thus forcing us to indulge in writing and appreciating our writing, but never really up to the hard task of going to work with pen and paper, dwindling the riches and comforts of private practice, Volvo buses and a Bisleri bottle. This was the idea anyway. A bus ride to Jaipur, sight seeing, random debauchery and maybe if we were lucky, a little bit of the literature festival. As an Almost Writer, you don’t hound literature festivals, you follow them on twitter and facebook but only if it is really in the news, and has enough facebook friends hooking up links and updates. What also happens with Almost Writers, is you end up intoxicated in the wee hours of the morning in a compartment of the Shatabdi travelling ticketless and generally disturbed about having to make a trip on a precious weekend!

We did eventually enter Diggi Palace; a haveli converted into a heritage hotel and the venue of the DSC Jaipur Literature Festival (JLF) quite easily.  There was little hustle, much bustle, like a late entrance into a leisurely Delhi wedding reception lunch on a winter afternoon, and yes, with a fair spattering of ‘firangs’ (To the credit of JLF, we were forced to turn our heads many times over by as many Indians, but more on that later).

On the front lawns there stood a massive (but gorgeous!) crowd, not much like the wedding reception, but the most colourful, most interesting – waahs and oohs resounding. On the stage, Gulzar, Javed Akhtar and Prasoon Joshi holding the crowd to much drama, Akhtar explaining away sub-standard Bollywood fare by describing it as a glorious gift of democracy, yes – democracy, which makes India beautiful and ofcourse, tasteless, what gets produced, and what writers produce reflect a coalition of flavours voted in by the masses. Gulzar was soon conducting a viva voce on which old songs a school girl knew that made her say they were so much more simple and better. Then there were other piquant observations which suddenly paled into the background when one of us noticed that many in the audience were having beer, and of course why not, on a glorious sunny winter afternoon in Jaipur. Why not!

Akthar - Art and democracy

An estimated 50,000 visited the JLF over its 5 days, an unusually high number for a literature festival, which left many of the participating authors overwhelmed. There were higher numbers on weekends, when some of the Delhi crowd did its literature road trip. The crowds though were surprisingly well behaved for an Indian crowd. One would bump into people to hear apologies and a sincere smile. Though we are all close to a stampede, after all this was a pilgrimage sight, credit to the sponsors – there wasn’t a 100 rupee express darshan. There weren’t x-ray machines, frisk and feel ups, caste system (all areas are open to all, being a Delegate only helps if you want to binge on scotch at the same counters). From writers, to film stars everyone part of the same throng which shifted from venue to venue through Diggi Palace. You could smell the next person, who wouldn’t smell like the next, if you are keen on that kind of thing. Though trust us, you wouldn’t mind some of it at all!

Festival throngs

For us, on both days the routine involved wading through these throngs from venue to venue, venue to watering hole, from the hole to the pool, and back to the venues, the shops, the book signings. Each time, there would be distractions. We are rushing for this session on Memoirs but wait; there is a gang of college (or school?) kids humming Knocking on the heaven’s door….with a guitar and we stop there, beer, cigarettes and all. There’s a panel discussion on The Future of Pakistan between Mani Shankar Aiyar and MJ Akbar but we stop to hear Arundhati Subramanian recite her poem the accusation of being too un-Indian to be writing about India.

The sari says it all!

There were moments; when you felt blessed; to be listening to famously reclusive JM Coetze reading out a story of the soul – of a Spanish cottage and an old woman with cats; you felt happy to join everyone who hung on to every single word, spellbound; you laughed when Ashok Chakradhar forgot the name of the moderator and went on to recite beautifully the awful poetry that came out of Kapil Sibal and his cellphone; ironic moments when you stood in the “Merril Lynch” Mughal Tent or the “Economist” Durbar Hall listening to an American, a Brit and a Mumbaikar talking about their respective memoirs being moderated by a Malyali and forgot that globalisation was a word you first heard in a school debate.

A story for the soul

There was much for the literary inclined, there was much for the celebrity inclined as well; for those who swung both ways, it was an orgy. Om Puri walked undisturbed. Few noticed Tarun Tejpal, fewer did, Rajat Kapoor. Koel Puri drew the stares, so did Kabir Bedi. Ruskin Bond got mobbed and didn’t look particularly pleased for it. No one bothered Vidhu Vinod who looked ready to punch the next guy who got in a foot’s radius. Orhan Pamuk was chatty while signing the books, Coetze dignified.

Bond, Ruskin Bond.

There were the diplomats, the bureaucrats, the politicians, an ex CM, a current CM. Add to this Jaipur school kids, attractive volunteers, the famous aunties of Delhi, their daughters, splash of Mumbai artsy and Delhi arsty, a lot of fartsy, small writers, big writers, readers, dedicated readers, loyal readers, potential readers, potential writers, students, academics, family picnics, skin and hair of various colours, countries, communities, elite, some not so elite, some certainly not, a fair bit of intoxication and everyone easily conversational, the invitation was warm. The sunrays blew away the breeze, cigarette smoke graced the air. This was joyous, noisy and throngy but warm and fun.

Rock!

After indulging the literary, the evenings broke into revelry and a concert. Indian classical followed by sufi rock. The qawwali made better by the alcohol and hope of love, as threads of conversations with beautiful strangers were cheered by hands rising in applause; matching the beat. You picked up from where you left; along with that glass.

Qawwali

Classical

However, joyous and eclectic the crowd, like one of one of our lovers (collaborating can be tricky!) put it so well – there are three pillars to a festival, the art, artist and audience and the better the festival, the more seamlessly they interact. This was the crowning glory of JLT. Yes, maybe there was more English than Indian or international, yes, maybe Shell was sponsoring an event, maybe it was all getting a little too political at times, a little pedestrian sometimes, we all had our observations and reservations.

But with the finest of art, the finest of artists, an audience of connoisseurs, fineness of spirit doesn’t sit all too far. On two winter Jaipur days, we found much warmth and epidemic enthusiasm. The spirits conspired to make JLT the joyous party we little expected but thoroughly enjoyed. We wish to return, year after year.

Legal opinions can be funny animals. There are the straight forward ones, the sneaky ones, some are informative, some wasteful, all depending on the addressee, client (including budget), opposing parties, questions of law and various matters that make legal opinions unfathomable even to their connoisseurs – transactional lawyers. When all these complex matters come together and churn in your gut, red lights go on in your head, you know there are some things that have to be said but you cant say because you are a lawyer. Especially when there isnt anything ‘illegal’ or ‘non-compliant’ but when things smells funny. You take cover and you make noises, squeak but not squeal, do a little hop.

Clients don’t like little squeaks and hops. In a legal opinion, you have to justify noises that you make. One of the wonderful things to the rescue is ‘Obiter dictum’. There is a sea of it, an ocean – blue waters full of little fairies ready to justify the randomest of thoughts and arguments, a lawyer’s damsel in the time of distress. Obiter is that part of a judgment (opinion of a court) that contains what courts actually mention in passing. Picture your mother, dishing out her opinion of your new girlfriend just when she’s about to lock you out of the house (actually, for smelling of rum). This can be useful and important when you can’t find a prior decision to give you an idea of how courts (read mom) would look at a dispute (read girlfriend). To get a flavour of things to come, words mentioned in passing are sometimes all we as lawyers are called upon to make the best of. We twist and turn them over a fire, roast them to a decent brown, and drop them into our opinions.

When legal opinions are cooked up, lawyers are careful to distinguish between ratio decidendi (law on the basis of which courts actually decided a case) and obiter dicta (courts in blah blah mode), thus tempering the seriousness of their conclusions. But sometimes we wonder if courts actually know the difference. There are judges who like to have fun with all parts of their opinions, and often care little about the seriousness of their conclusions. But theoretically, it is imperative that judges get the ratio decidendi right, while the obiter which has no bearing on the matter at hand, can be blah. Judges can blah wrong, blah and blah, blah in peace, all in the off chance that someone someday somewhere will heed their obiter, hail their foresight, alter the law (to suit the blah), and place their names on obscure pedestals in distant law universities. Obiter is a longshot, a lottery ticket to limelight.

For lawyers who yearn entertainment when punished with inconclusive and long-winding legal research, obiter can be an excellent source of entertainment. Obiter can be interesting, random, mind numbing, dumb, philosophical, cynical, religious, patriotic, socialist, stupid and anything else that that you like it to be, you stumble across them everywhere and unlike ratio decidendi, obiter often exceed expectations. Obiter also makes for good conversation. If you want to capture the attention of an attractive lawyer, no better way than to discuss which part of a judgement was funny, and which part disgusting. Lawyers are creepy, but in innocent ways.

But judges? A recent example of entertaining obiters is in this judgment (which some called a ‘historical disquisition’!). I don’t mean to trivialize a gruesome case involving sexual molestation, but this obiter is truly, well -  comedy, unadulterated and unintentional. We recognize judges are extremely well paid in this country, and often have the insatiable urge to create value, but this passage should blow anyone’s mind:

“25. In Google `The original inhabitants of India’, it is mentioned : “A number of earlier anthropologists held the view that the Dravidian peoples together were a distinct race. However, comprehensive genetic studies have proven that this is not the case. The original inhabitants of India may be identified with the speakers of the Munda languages, which are unrelated to either Indo-Aryan or Dravidian languages”

26. Thus the generally accepted view now is that the original inhabitantsof India were not the Dravidians but the pre-Dravidians Munda aborigines whose descendants presently live in parts of Chotanagpur (Jharkhand),Chattisgarh, Orissa, West Bengal, etc., the Todas of the Nilgiris in Tamil Nadu, the tribals in the Andaman Islands, the Adivasis in various parts ofIndia (especially in the forests and hills) e.g. Gonds, Santhals, Bhils, etc.

27. It is not necessary for us to go into further details into this issue, but the facts mentioned above certainly lends support to the view that about 92% people living in India are descendants of immigrants (though more research his required).”

8 percent makes sense!

I wonder where the other 8% of our descendants came from, and who is smoking what. Please read all of it, it makes for good conversation and most of all – it’s a hell lot of fun.

The most recent development in the saga which began in 2003 is the decision of the Supreme Court in State of Maharashtra v. Sangharaj Damodar Rupawate, delivered on 9^th July, 2010. Soon after the publication of the book, which allegedly contains scurrilous and defamatory remarks against Shivaji, there were several acts of violence in Maharashtra, culminating in a criminal complaint being filed against Prof Laine and others associated with the book, for offences under sections 153, 153-A and 34 of the Indian Penal Code, 1860 [“IPC”]. The challenge to this complaint went right up to the Supreme Court, where it was finally disposed off in Manzar Sayeed Khan v. State of Maharashtra. Section 153 and section 153-A, taken together, provide that provoking rioting, or promoting enmity between different classes, communities or castes, are offences under the IPC. The Supreme Court rightly held that both these provisions have a necessary requirement of mens rea, which was not established on the facts of the case. On this ground, the proceedings in both the cases were quashed. In response to this decision, the State of Maharashtra issued a declaration under section 95 of the Code of Criminal Procedure [“CrPC”], forfeiting all copies of the book to the Government. This was successfully challenged before the Bombay High Court, the appeal against which fell for the Apex Court’s consideration in Sangharaj Damodar Rupawate.

Before the Supreme Court, the case of the respondents was that there was nothing to show that the book had resulted in disturbance between groups, and that no offence under section 153-A was made out. The appellant (State of Maharashtra) contended that the State Government has discretionary powers under section 95, and the threshold is only that of its subjective satisfaction. It relied on the supposed primacy of public interest over private rights, arguing that any material creating a rift between groups or communities cannot be allowed, even if the content thereof is true chong qi zhang peng.

To examine the validity of these contentions, let us begin by examining section 95, the text of which reads (in its relevant part)-

(1) Where-

(a) Any newspaper, or book, or

(b) Any document,

Whenever printed appears to the State Government to contain any, matter the publication of which is punishable under … section 153 A or section 153B …, the State Government may, by notification, stating the grounds of its opinion, declare every copy of the issue of the news paper containing such matter, and every copy of such book or other document to be forfeited to Government… [emphasis supplied]

Thus, section 95 lays down two requirements for a declaration of forfeiture- (a) the State Government must form an opinion that the publication contains matter which is punishable under section 153-A; and (b) it must state the grounds of its opinion. The Supreme Court, in an appropriate exercise of judicial restraint, decided the case on the narrow basis that the declaration did not disclose the grounds of its opinion. The Court observed that the declaration only stated the opinion of the Government that section 153-A was being violated by the book, without explaining the grounds on which it formed this opinion. Admittedly, this is a permissible basis on which to invalidate the declaration of forfeiture. However, it leaves the option open to the State Government to issue a fresh declaration of forfeiture, stating its grounds in full. Ordinarily, there is nothing wrong with this outcome. However, for reasons which I now proceed to, this outcome is far  from satisfactory in the context under consideration here.

In arriving at its decision, the Court drew a distinction between a requirement that the book should be proved to be in violation of section 153-A, and a requirement that the State Government should form an opinion that it violates section 153-A. This distinction is admittedly sound in law, and is backed by sufficient legal precedent. However, this distinction is entirely inapplicable when dealing with a situation where the book has been judicially held to be not in violation of section 153-A. Here, the declaration of forfeiture was preceded by a decision of the Supreme Court in Manzar Sayeed Khan that the book did not violate section 153-A. Against this backdrop, an interpretation of the provision allowing the State government to form an opinion contrary to a decision of the Supreme Court is highly dubious. Once a book has been held by the Supreme Court to not violate section 153-A, is it open for the State Government to form the opinion that the same book violates section 153-A? Such a conclusion would have been possible had the requirement of section 153-A been the ‘possibility’ of disharmony between groups. In such a scenario, the State Government may form an opinion contrary to a decision of the Apex Court, based on development subsequent to the decision of the Supreme Court. However, under section 153-A as it now stands, mens rea is an essential requirement under section 153-A. A finding by the Supreme Court that this mens rea is absent at the time of publication of the book, cannot be revisited by the State Government based on subsequent developments. Further, section 96 of the CrPC also supports this interpretation. Under this provision, a person may challenge the declaration under section 95 on the basis that the book ‘did not contain any such matter as is referred to in sub-section (1) of section 95’. It is important to note that the subject of the challenge is not the opinion of the State Government, but matter contained in the forfeited material. Thus, even if the State Government’s opinion is bona fide, if the matter is not punishable under section 153-A, the declaration will be set aside under section 96.

If this position is accepted, even if the grounds of the opinion are set out in detail in a subsequent section 95 declaration, it will still have to be set aside on the basis that mater was not punishable under section 153-A, given the decision of the Supreme Court in Manzar Sayeed Khan. The decision in Sangharaj Rupawate, with its emphasis on the absence of grounds for the opinion, and the distinction between the offence under section 153-A and the opinion under section 95, may be interpreted as leaving the option open for the State Government to issue a fresh declaration under section 95, with detailed grounds, which would be considered valid. Especially given the belligerent attitude adopted by the Maharashtra State Government, with the Chief Minister openly declaring its intention to pass a law to bypass the Supreme Court decision (raising an interesting legal question of whether such a law intended to bypass the decision would be liable to be struck down as colourable legislation), makes such a step far from unlikely. It is a different matter that the book has been withdrawn by the publishers, and is not in print any longer. However, for the sake of clarity on the law, and to deliver a much-needed blow to regional chauvinism, it may have been better if the Supreme Court in Sangharaj Rupawate had gone a step further and held that no section 95 declaration in respect of the James Laine would be legally permissible.

Article 156 of the Indian Constitution reads-

(1) The Governor shall hold office during the pleasure of the President.

(2) The Governor may, by writing under his hand addressed to the President, resign his office.

(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office:

Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. [emphasis supplied]

The primary contention of the petitioner was that clause (1) of Article 156 should be read down in light of the tenure of five years provided in clause (3). Further, in a democratic system of governance, it was contended that the ‘pleasure principle’ cannot be as unfettered as it was in feudal England (where it originated), but must necessarily be bound in by some guidelines, and be subject to judicial review. The respondent refuted these contentions on the text of the provision, which explicitly subjects the tenure (in clause (3)) to the pleasure of the President (in clause (1)). Further, since the President’s decision is based on the ‘aid and advice’ of the Council of Ministers, which is free of judicial review under Article 74(2), there was no possibility of subjecting the removal of a Governor to judicial review.

The Court made an encouraging start, discussing the feudal origins of the ‘doctrine of pleasure’, observing that “[t]here is a distinction between the doctrine of pleasure as it existed in a feudal set-up and the doctrine of pleasure in a democracy governed by rule of law”. However, it is important to note that in provisions like Article 311(2), the drafters have included specific limitations on the doctrine of pleasure, which are absent in Article 156. The Court noted this difference, concluding however, that this did not preclude the existence of even the most limited restrictions on the exercise of the power of removal under Article 156. While the requirement of a fair hearing, or an inquiry (as contained in Article 311(2)) could not be read into Article 156, the basic requirement that the power not be exercised whimsically or capriciously must nevertheless be considered an essential part of the power of removing Governors. In the words of the Court,

Where rule of law prevails, there is nothing like unfettered discretion or unaccountable action. The degree of need for reason may vary. The degree of scrutiny during judicial review may vary. But the need for reason exists. As a result when the Constitution of India provides that some offices will be held during the pleasure of the President, without any express limitations or restrictions, it should however necessarily be read as being subject to the ‘fundamentals of constitutionalism’.

The Court also considered the recommendation of the Sarkaria Commission and the Consultation Paper on ‘Institution of Governor under the Constitution’ published by the National Commission to Review the Working of the Constitution, both of which have made a strong case for reading in detailed guidelines into Article 156. However, while noting these recommendations, the Court, in a refreshing act of judicial economy, observed

These recommendations howsoever logical, or deserving consideration and acceptance, remain recommendations. They cannot override the express provisions of the Constitution as they stand. Nor can they assist in interpreting Article 156. The very fact that such recommendations are made, shows that the position under the existing Constitutional provisions is otherwise. They are suggestions to be considered by those who can amend the Constitution. They do not assist in interpreting the existing provisions of the Constitution.

Next, the Court went on to elaborate what seems to be the most important part of its reasoning. In oral arguments, even the respondent (Union of India) had pressed its contention that the discretion of the President in the removal of a Governor is completely unfettered. However, one of the permissible grounds for removal suggested was the Governor not ‘being in sync’ with the policies if the Central Government, and that a Governor could be removed if and when the Central Government ‘lost confidence’ in her/him. However, the Court noted that the political scenario has undergone a sea change over the last several years, and different parties are often in power at the Centre and the State. Allowing ‘confidence’ to be a ground for removal would thus allow the politicisation of the post of a Governor, which was specifically intended to be an apolitical Constitutional post. The Court stated, in no uncertain terms, that disparity in policies of loss of confidence were not sufficient grounds for removal. While this seems a satisfactory conclusion, what is unclear from the decision is whether this view was prompted by the necessity of fetters on the pleasure of the President, or by the change in India’s political scenario. The decision suggests that it is the latter of the two considerations that influenced the Court. While that may be natural, modelling Constitutional interpretation on political considerations seems suspect.

That brings me to the last part of the decision, regarding the permissibility of judicial review of the removal of a Governor. The Court observed that the Constituent Assembly Debates suggested that the power of removal was never intended to be unfettered. Further, it noted that while the President could not be called on to provide reasons for removal to the Governor, this does not preclude judicial review. The Court observed “Therefore, while we do not accept the contention that an order under Article 156 is not justiciable, we accept the contention that no reason need be assigned and no cause need be shown and no notice need be issued to the Governor before removing a Governor”. An analogy was drawn to the power of Presidential pardon, which also allowed for a limited degree of judicial review. The Court elaborated this limited extent of review in the following words,

In the event of challenge of withdrawal of the pleasure, the court will necessarily assume that it is for compelling reasons. Consequently, where the aggrieved person is not able to establish a prima facie instance of arbitrariness or malafides, in his removal, the court will refuse to interfere. However, where a prima facie case of arbitrariness or malafides is made out, the Court can require the Union Government to produce records/materials to satisfy itself that the withdrawal of pleasure was for good and compelling reasons. What will constitute good and compelling reasons would depend upon the facts of the case. Having regard to the nature of functions of the Governor in maintaining centre-state relations, and the flexibility available to the Government in such matters, it is needless to say that there will be no interference unless a very strong case is made out. The position, therefore, is that the decision is open to judicial review but in a very limited extent.

While this serves as a good starting point, unfortunately the Court fails to go any further in elaborating the precise import of the broad terms employed in the above extract. Apart from the prohibition on using ‘lack of confidence’ as a ground for removal, the Court does not provide any idea of what the legitimate grounds may be, contenting itself with the observation that “What would be compelling reasons would depend upon the facts and circumstances of each case”. Thus, while the decision serves the important function of providing that there must be some grounds on which the removal must be based, it is steadfastly quiet on what these grounds are. Further, since there is no requirement of disclosing the grounds for removal to the Governor, establishing the prima facie case required by the Court is also well-nigh impossible, except in rare cases.

Now, it is true that the degree to which the Court can review the removal of a Governor is necessarily circumscribed by the text of the Constitution, and the powers provided therein. Allowing for any more powers of review, or stricter guidelines on the removal of a Governor, would have done violence to the provisions of the Constitution. Within the confines of the Constitution as it exists, the Court has done the best it could for limiting arbitrary removal. Absent a Constitutional amendment, we are still a long way away from imposing a realistic limitations on the removal of Governors. However, Constitutional jurisprudence abounds with examples where symbolic dicta have served an important function is influencing the development of the law (Marbury v. Madison being an ideal example of the value of symbolism). Given the immense symbolic value of BP Singhal, it is nevertheless an important symbolic step towards accountability of the Centre in removing Governors.